As more employers begin to open their doors and their employees return to work, unanticipated and unusual issues are likely to arise.  Due to the length of time people have been forced to live without their traditional income, people across the state may be more prone to return to work before they should.  A scenario is almost certain to arise where an employee has symptoms of COVID-19 but decides to return to work due to either ignorance, need to keep their job, stubbornness, or personal preference. What are the legal ramifications when an employee returns to work and exposes their co-workers to COVID-19 as a result?  Will the co-workers’ have a viable workers’ compensation claim based on a symptomatic co-worker who returned to work too soon?  Will the injured employee be able to bring a claim beyond the liability limits of the Workers’ Compensation Act against the individual employee?  If the injured employee can bring such a claim beyond the Workers’ Compensation Act, could the employer in turn be held liable under a theory of vicarious liability?  This article considers what recourses an employee may have when they develop COVID-19 due to a co-worker’s decision to return to work when they know they should not.  

Workers’ Compensation Claims 

Would an employee have a viable workers’ compensation claim in this scenario?  The answer is maybe.  It seems natural that workers’ compensation is the first place an infected employee may look if they contracted COVID-19 due to the negligence of a co-worker.  For the claim to be compensable under workers’ compensation, it must either be an injury by accident or an occupational disease. Any claim under this scenario would likely be pursued under an occupational disease theory. Currently, COVID-19 is not an enumerated compensable occupational disease under N.C.G.S. §97-53, which means that in order for a Plaintiff to prevail on the issue of compensability they must show: (1) COVID-19 is a disease characteristic of persons engaged in the particular occupation Plaintiff was engaged in; (2) COVID-19 is not an ordinary disease to which the public is equally exposed; and (3) there must be a causal connection between the disease and employment.  

A COVID-19 claim could be treated like a past claim in our courts where a lab technician who handled blood samples, many of which were positive for hepatitis, developed hepatitis himself.  In determining whether his work exposure could have caused hepatitis, the Court looked to factors including the extent of exposure to hepatitis outside of work, the extent of exposure to hepatitis at work, and the absence of hepatitis prior to exposure at work.  The employee’s workers’ compensation claim was found compensable because of the increased exposure he had at work, the fact that he did not have the disease prior to his work exposure, and because he did not engage in activities outside of work considered high risk for contracting hepatitis. Considering the COVID-19 pandemic and the risk of exposure in everyday activities for all Americans outside the workplace, it would be difficult for a claimant to show their employment placed them at a greater risk of exposure than the public generally.   

The compensability of a COVID-19 claim is largely unknown at this time, since no claims have been litigated before the Commission.  Also, the medical evidence we have about COVID-19 is fairly limited and ever-changing.  One of the unique elements of COVID-19 is that it is incredibly contagious and can be transmitted quite easily.  Further, infected persons can remain non-symptomatic for up to fourteen days.  As you might imagine, these two factors would make it very difficult to pinpoint when or where a person contracts the virus.  In the situation contemplated here, based upon the existing law without any new developments, a claimant will likely struggle to prevail in a workers’ compensation claim based on an allegation of exposure to COVID-19 from a co-worker since exposure could have just as easily occurred at a grocery store or gas station or even from a friend or family member.  Of note, there is currently a house bill before the legislature that would create a rebuttable presumption that essential workers contracted COVID-19 at work, and the standard to rebut that presumption would be clear and convincing evidence.  If this bill passes, it would be much easier for claimants (particularly essential workers) to prevail under workers’ compensation for COVID-19 claims.    

Claims Against Co-Employees

Ordinarily, employees injured by negligent acts of a co-employee cannot hold their co-employees directly liable for those injuries when workers’ compensation applies. For ordinary negligence between co-employees, the Workers’ Compensation Act limits liability to a workers’ compensation claim. But, a claimant can reach broader civil liability against a co-employee if the co- employee’s acts were either intentional or willful, wanton, and reckless, rather than simply negligent. 

Cases navigating the twilight zone between negligent and intentional conduct have generally created a high bar for proving that the conduct was more than simply negligent. For example, North Carolina Courts have denied this broader civil liability when it would have been solely based on multiple OSHA violations, or even when the co-employee sent the ultimately-injured employee to operate a dangerous machine knowing that working at the machine would be an OSHA violation. However, under some situations, North Carolina Courts have allowed and created broader civil liability for co-employees. The classic case involved an employee who tried to drive his truck as close as he could to his co-employee without actually hitting him, and (as hindsight expects) misjudged his ability and actually did swipe his co-worker. There, the injured employee was allowed to recover directly from his co-employee. 

A successful claim of an employee against a co-employee for COVID-19 exposure at work will likely prove to be a challenge. An employee exposed to COVID-19 by a co-employe at work will need to allege and prove more than simple negligence for his or her claim to break out of the confines of the Workers’ Compensation Act to reach their co-employee. There will need to be a showing that the co-employee’s conduct in exposing the employee claimant to COVID-19 at work was either intentional or willful, wanton, and reckless. This will likely be a high bar to meet given realities of how COVID-19 is spread and the global scale of the pandemic. 

Notably, the North Carolina Court of Appeals has said that an exception from Workers’ Compensation exclusivity for injuries by co-workers cannot be raised against an employer. Though the case law on this issue sounds promising for employers, each of them, because of their peculiar posturing and other conclusions involved, leave room to argue that an employee could recover from the acts of his or her co-employee through a claim against the employer for vicarious liability or based on a theory of respondeat superior which could create a new exception to the Workers’ Compensation Act’s exclusivity rules.   

Claims Against Employers Beyond the Workers’ Compensation Act

According to the North Carolina Workers’ Compensation Act, a claim cannot be brought against an employer at common law for an injury if the employee and employer are “subject to and have complied with the provisions of this Article…” Based upon the language of the Workers’ Compensation Act, it has long been thought that workers’ compensation is an employee’s sole remedy where they sustain an injury at work.  

While a good general rule to follow, exceptions to the rule have developed over the years.   For example, an employee may only pursue a civil action against an employer for an injury at work where the employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death, and then does. This standard is almost akin to an intentional tort carried out by the employer and is a very high bar to clear. The scenario of an employee contracting COVID-19 from a co-worker who returned to work too soon, without supporting intentional acts by the employer, is unlikely to create the factual scenario necessary to meet the high standard required for an employee to bring an action directly against the employer for intentional misconduct. North Carolina Courts have contemplated imposing liability on an employer beyond the Workers’ Compensation Act for the willful, wanton, and reckless conduct of a co-worker (as addressed above), but although the cases are promising the Courts have not come to a final conclusion. 

North Carolina Courts have also recently allowed an employee to bring a direct negligence claim against an employer for a workplace injury that is not compensable under the Workers’ Compensation Act. By establishing this sort of exception at all, North Carolina Courts have shown that they are willing to consider unrestrained negligence claims of an employee directly against their employer where the employee has no relief under the Workers’ Compensation Act. Although it is not clear whether this exception would apply to the COVID-19 claim contemplated here, for a workplace injury claim to be compensable under the Workers’ Compensation Act it must either be an injury by accident or an occupational disease, and addressed above contracting COVID-19 at work from a co-employee is not likely to be considered an occupational disease. An accident under the Workers’ Compensation Act is defined as “the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences[,]” or “an unlooked for and untoward event which is not expected or designed by the injured employee.” Contracting COVID-19 in the workplace from a co-employee is therefore not likely to be considered an injury by accident under the Workers’ Compensation Act, either. Thus, an employee seeking to assert a claim as contemplated here would not likely be limited to recovery under the Workers’ Compensation Act and may be able to pursue a valid civil liability claim against their employer for the conduct of a co-employee who exposed them to COVID-19 under a theory of vicarious liability or respondeat superior. 

The ultimate concern for employers is that vicarious liability or respondeat superior may be called on to step up to fill the gap in the context of COVID-19. Language from prior North Carolina Court of Appeals cases suggests that North Carolina Courts may be willing to impose civil liability on employers when the reach of the Workers’ Compensation Act is too short, particularly in the context of claims that may not be compensable as may be the case with COVID-19. Claimants may also look to other areas of the law to bolster their argument for civil liability on employers for the actions of their co-employees, such as sexual harassment and hostile work environment cases in which an employer can be held vicariously liable for the actions of a supervisor with immediate or successively higher authority over the employee. Any employee could also argue that an employer ratified the conduct of a co-employee with COVID-19 or COVID-19 symptoms by not taking affirmative steps to keep them away from the workplace. Ultimately, plaintiffs can look to existing exceptions and exclusions to the Workers’ Compensation Act’s exclusive-remedy rules, and to the existing law of vicarious liability or respondeat superior, to try to create claims against their employers if they’re sickened with COVID-19 from the workplace.

Given possible claim exposure, it is important for employers to take precautions and to implement COVID-19 polices aimed at protecting employees from contracting the virus at work and from co-workers. As employers navigate the new frontier of COVID-19 claims among employees and against employers themselves, there are bound to be many firsts. It will be key for employers to keep abreast of changes in the law to best protect themselves from liability which is likely to come at them from the dual fronts of workers’ compensation and civil liability.